Open educational resources, widely regarded as posing a challenge to commercial providers of academic content, have received a potentially major boost with the passage of the Every Student Succeeds Act.
The sweeping federal law signed by President Barack Obama last month contains specific language that allows states and local education agencies to channel block grant money focused on technology toward open materials.
The language in the law represents a significant milestone for open resources, said Reg Leichty, a founding partner at Foresight Law + Policy, a Washington firm that followed the drafting of ESSA closely, examining its impact on educational technology and other areas. 鈥淐ongress is saying, 鈥榃e see this happening in schools around the country,鈥� 鈥� Leichty said, and 鈥渨e should be [helping them move] that way.鈥�
Open materials鈥攐ften defined as resources released under a license that allows their free use, remix, and sharing by others鈥攈ave become popular in some districts around the country. K-12 officials see them as low-cost materials that give teachers more power than they have with commercial products to choose content.
At the same time, they鈥檙e regarded skeptically by many publishers, who say the materials often amount to crude vessels for delivering simplified content, free of academic supports teachers and schools need.
Open education resources, however, won bipartisan backing on Capitol Hill during the drafting of ESSA. Champions of the concept have included Sens. Orrin Hatch, a Republican from Utah whose state was an early adopter in experimenting with open materials, and Tammy Baldwin, a Democrat from Wisconsin.
Open materials weren鈥檛 even mentioned in the earlier version of the federal law, No Child Left Behind. When NCLB was signed into law 14 years ago, the concept of open educational resources hadn鈥檛 taken shape鈥攁t least not as they鈥檙e defined today.
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The Obama administration has also pushed to support open resources, proposing a new regulation in October that would require any new intellectual property developed with grant funds from the U.S. Department of Education to be openly licensed. Then-Secretary of Education Arne Duncan said his department was 鈥渆ncouraging districts and states to move away from traditional textbooks and toward freely accessible, openly licensed materials.鈥�
Congressional lawmakers included language backing open educational resources, or OER, as part of block grants through Title IV of ESSA, assisting with student support and academic enrichment.
Specifically, the law says that states can use those federal funds to support local efforts focused on 鈥渕aking instructional content widely available through open educational resources, which may include providing tools and processes to support local educational agencies in making such resources widely available.鈥�
The law also includes a reference to open resources in its definition of 鈥渄igital learning,鈥� which it says focuses on strengthening students鈥� experiences through technology, and can include 鈥渙penly licensed content.鈥�
It鈥檚 not clear what specific strategies districts would pursue in using federal money for open resources.
Presumably, one option would be for the money to help teachers and other K-12 educators curate and update open materials they鈥檙e taking from various sources鈥攁 process that can be a heavy lift.
The amount of funding that flows to district open-resources efforts will depend on many factors, Leichty noted. One question will be how much money federal lawmakers appropriate for the block grants, he said. And ultimately, state and local officials will have to decide where open materials fit among their other spending priorities.
TJ Bliss, a program officer for the William and Flora Hewlett Foundation who works on open educational resources, said the inclusion of language in the law represents both a symbolic and a practical step forward for the materials. The philanthropy has been a major backer of open resources.
He said the language also fit the overall thrust of ESSA, broadly viewed as delegating more power to states and local districts. State and local officials will have the freedom to spend money on open resources鈥攐r focus on other needs, Bliss said.
Legislative Move Questioned
The support for open resources in the law was viewed less favorably by Jay Diskey, the executive director of the Association of American Publishers鈥� pre-K-12 division. His association has said it does not oppose open educational resources, but it is wary of government officials promoting them in the marketplace in ways the group believes will hurt companies and leave consumers with fewer choices.
His organization does not see the open-education language as posing a threat, but 鈥渨e are concerned about the signal it sends,鈥� Diskey said.
State and local entities should be encouraged to choose from an array of resources, but without federal officials favoring open or commercially produced sources, Diskey argued. Materials created as open resources might provide good academic content in isolation, but many districts need a broad range of wrap-around support for content, the kind that commercial companies devote significant resources to providing, he said.
鈥淚t鈥檚 about much more than just content,鈥� Diskey said. 鈥淚n most cases, what districts want are really innovative projects that involve data analytics, assessment features,鈥� and other components.
The AAP laid out a broader set of concerns in comments submitted to the Education Department on its proposed regulations requiring intellectual property developed with federal grant funds to be openly licensed.
Among other arguments, the association maintained that the regulation would run afoul of the federal Copyright Act, with the department assuming powers that belong to Congress. The regulation would unfairly 鈥渞estrict or eliminate鈥� the rights of copyright holders, the AAP contended.
The association also argued that the proposal flouts an executive order by President Obama that requires agencies to base their regulations on 鈥渢he best available science,鈥� among other federal policies.
鈥淎AP has no objections to the availability of open educational resources and respects the department鈥檚 desire to provide assistance鈥� in that area, wrote Allan Robert Adler, the AAP鈥檚 general counsel and vice president for government affairs, in comments to the department. But "[t]here simply is no justification for a federal agency to thwart or distort fair market competition by placing its thumb on the economic scales of the market for educational resources.鈥�
But Bliss said interest in open educational resources is growing organically from grassroots support among state and district officials. That interest has, in turn, most likely compelled federal officials, including members of Congress, to act.
鈥淭his is a good indication that OER is becoming important to solving key problems in education,鈥� he said, and that the issue is recognized by 鈥減olicymakers at the national level.鈥�
